Matt Pawa is patient and methodical in his approach to suing energy manufacturers. He knows he will be handsomely compensated at many points on his legal marathon.
For over 10 years, Pawa has banded together with environmental activists with deep pockets to go after companies that they apparently don’t think should be in business, namely energy manufacturers. His forays in this arena in recent years reveal a crafty legal mind and a knack for spotting lucrative opportunities in using the law in dubious ways.
So far, going after energy companies for damages related to carbon emissions has been largely unsuccessful. However, in the case of American Electric Power Company (AEP) v. Connecticut, the U.S. Supreme Court opened up the possibility of suing polluters in state courts. In that case, eight states, the City of New York, and other entities sued several electric utilities in the northeast. After a court battle that lasted nearly seven years, in 2011 the Court ruled that corporations cannot be sued for greenhouse gas emissions under federal common law. The reasoning underlying the 8-0 decision was that the Clean Air Act (CAA) gave the Environmental Protection Agency (EPA) the authority to regulate these emissions.
Pawa, who was an attorney in the case, saw the ruling less as the closing of a door and more as the opening of a window. While the case settled the issue of standing of municipalities in federal court under federal common law, Pawa recognized that attacking energy manufacturers through other channels, possibly one state at a time and using statutory provisions more narrowly, could help build a body of case law to use in an eventual comprehensive nationwide assault on the industry. In essence, long-term success for him and his allies depends on a constant stream of similar suits. Pawa told VICE News, “We gotta keep filing case after case before we get it right.”[i]
Court rulings to date suggest that judges are hesitant about holding a particular company or companies for a phenomenon affecting the entire planet. There are simply too many variables involved and assigning specific responsibility for what is seen as planet-wide phenomenon is all but impossible with a metric that is widely accepted as scientifically sound. But Pawa scoffs at judges’ skepticism. He has spotted ambiguities in case law that provide what he sees as possible entries for filing a spate of new law suits. For him, there is ample opportunity to mold opinion, even if it has to be done one case as a time.
Pawa is unwilling to work for policy solutions from the political arena, even though the highest court in the land has clearly said this is what the law and the constitutional separation of powers requires. Supreme Court be damned, he sees lawsuits—and regulation through litigation– as faster.
Lawsuits are also more lucrative, especially for Pawa. In 2013, he won a multi-million dollar settlement against energy manufacturers.[ii] His contingency fee was at least $35 million. With that kind of payday, it makes sense that Pawa continues to position himself at the center of coordinated campaigns to harass and sue energy industry leaders, especially since well-heeled activists are so willing to underwrite the effort. In the last few years, Pawa provided strategic and tactical advice to a group of state attorneys general in these efforts. So far the claims have been proven wrong or unsubstantiated and all but a few state attorneys general have backed away.[iii]
Nonetheless, Pawa is undeterred. He has every reason to stay the course. The acquisition of his firm last fall by Hagens Berman Sobol Shapiro, a giant plaintiffs’ firm based in Seattle, and his ever-stronger ties to activists and their financial patrons, suggest big payouts down the road, even if not every suit succeeds.[iv]
[i] “Environmental Lawyers Gear Up for Fighting Climate Change in the Courts,” VICE news, Oct. 21, 2014.